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not tay ber own

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


[page 44]
Second, the district court's discussion of post-sale confusion was based on an erroneous premise. In finding that post-sale confusion was unlikely, the court commented that "there is little or no chance that [the faucets] will be resold to unwary consumers." Lund I, 11 F.Supp.2d at 123. Post-sale confusion refers not to the resale of the original product, however, but to the risk that non-purchasers, who themselves may be future consumers, will be deceived. See 3 McCarthy 23:7 (noting that "[t]he damage to the senior user ... is that consumers could acquire the prestige value of the senior user's product by buying the copier's cheap imitation," and that in such a case, "[e]ven though the knowledgeable buyer knew that it was getting an imitation, viewers would be confused"). For example, in a case involving counterfeit Rolex watches, the court commented that
[i]ndividuals examining the counterfeits, believing them to be genuine Rolex watches, might find themselves unimpressed with the quality of the item and consequently be inhibited from purchasing the real time piece. Others who see the watches bearing the Rolex trademarks on so many wrists might find themselves discouraged from acquiring a genuine because the items have become too common place and no longer possess the prestige once associated with them.
Rolex Watch U.S.A., Inc. v. Canner, 645 F.Supp. 484, 495 (S.D. Fla.1986). In other words, even if the purchaser of a Falling Water faucet knew that she was buying the Kohler faucet and not the VOLA, the district court could still find a likelihood of confusion if subsequent viewers of the faucet would believe it to be a VOLA. Cf. Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 222 (1st Cir.1989) (noting that "point of sale confusion was not the only issue" because "prospective consumers, viewing the clothes on other people, would be confused as to the origin of the goods"). However, because the district court's determination of no likelihood of post-sale confusion does not appear to have been a key factor in its decision, we do not believe it undercuts the court's conclusion [page 45] regarding probability of success on the merits.

The district court correctly found that Lund was unlikely to prevail on the merits of its infringement claim, and so correctly denied the preliminary injunction on those grounds.

 

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